Borges v. Cnty. of Mendocino

• Decision Date: 18 April 2022
• Docket Number: Case No. 20-cv-04537-SI
• Citation: 598 F.Supp.3d 846
• Parties: Ann Marie BORGES, et al., Plaintiffs, v. COUNTY OF MENDOCINO, Defendant.
• Court: U.S. District Court — Northern District of California

598 F.Supp.3d 846

Ann Marie BORGES, et al., Plaintiffs,

v.COUNTY OF MENDOCINO, Defendant.

Case No. 20-cv-04537-SI

United States District Court, N.D. California.

Signed April 18, 2022

John Houston Scott, Scott Law Firm, San Francisco, CA, Izaak David Schwaiger, Schwaiger Law Firm, Sebastopol, CA, William A. Cohan, William A. Cohan, P.C., Carlsbad, CA, for Plaintiffs.

Brina Anna Blanton, Christian M. Curtis, Office of the County Counsel, Ukiah, CA, Abigail Anne Mendez, John Allan Abaci, John F. Pomeroy, Michael George Colantuono, Pamela Kentos Graham, Colantuono, Highsmith and Whatley PC, Pasadena, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 97, 111

SUSAN ILLSTON, United States District Judge

On April 8, 2022, the Court heard argument on defendant's motion for summary judgment. For the reasons set forth below, the Court GRANTS the motion. The Court DENIES plaintiffs’ administrative motion to reopen the deposition of Diane Curry because the Court finds that plaintiffs have not demonstrated any basis for reopening that deposition.

BACKGROUND

Plaintiffs Ann Marie Borges and Chris Gurr allege that the County of Mendocino violated their rights under the Equal Protection Clause of Fourteenth Amendment to the United States Constitution when the County denied their application for a permit to cultivate medical cannabis on July 9, 2018, and when the Mendocino County Board of Supervisors adopted an ordinance zoning their neighborhood to prohibit commercial cannabis cultivation on December 4, 2018. Borges and Gurr assert a "class of one" claim, contending that the County singled them out for reasons unrelated to any legitimate governmental objective, and that they were treated differently than others similarly situated.

I. Mendocino County's Medical Cannabis Cultivation Ordinance

In April 2017, the County of Mendocino adopted Medical Cannabis Cultivation Ordinance ("MCCO") No. 4381, enacting Chapter¹ 10A.17 of the Mendocino County Code. Def's Request for Judicial Notice, Ex. A (Dkt. No. 99-1).² Along with Chapter 10A.17, the Board of Supervisors also adopted complementary zoning regulations. Id. at Ex. C at 68³ (Board of Supervisors Resolution No. 17-402 ¶ 2).

Chapter 10A.17 sets forth three successive phases of regulation. Section 10.A.17.080 provides,

Section 10A.17.080 – Permit Phases and Requirements Specific to each Phase

Unless specifically exempted, in addition to compliance with all other requirements of this Chapter, all Permits shall comply with the following requirements:

(A) Permits under the MCCO will be issued in the following three phases:

(1) Phase One: Following the effective date of the MCCO, Permits will only be issued to applicants who provide to the Agricultural Commissioner pursuant to paragraph (B)(1) of this section proof of cultivation at a cultivation site prior to January 1, 2016 ("proof of prior cultivation"), and who comply with all other applicable conditions of this Chapter and Chapter 20.242. Applications for Permits during Phase One shall only be accepted until December 31, 2017.⁴ Applicants able to provide proof of prior cultivation may apply for a Permit on a relocation site pursuant to paragraph (B)(3) of this section.

(2) Phase Two: Starting January 1, 2018, the Agricultural Commissioner will begin accepting applications for Type 1A and Type 2A Permits for indoor cultivation in the following zoning districts, subject to compliance with all other applicable conditions of this Chapter and Chapter 20.242: Limited Industrial (I-1), General Industrial (G-2), and Pinoleville Industrial (P-1). Proof of cultivation prior to January 1, 2016, is not required.

(3) Phase Three: Starting January 1, 2020, the Agricultural Commissioner will begin accepting Permit applications from any applicant in conformance with the conditions of this Chapter and Chapter 20.242. Proof of cultivation prior to January 1, 2016, is not required.

(B) Requirements specific to Phase One Permits.

(1) Proof of Prior Cultivation. Persons applying for a Permit during Phase One shall be required to provide to the Agricultural Commissioner evidence that they were cultivating cannabis on the cultivation site prior to January 1, 2016, which cultivation site shall have been in compliance with the provisions of section 10A.17.040. Evidence shall include:

(a) Photographs of any cultivation activities that existed on the legal parcel prior to January 1, 2016, including: (i) ground level views of the cultivation activities and (ii) aerial views from Google Earth, Bing Maps, Terraserver, or a comparable service showing: both the entire legal parcel and the cultivation site in more detail. The date these images were captured shall be noted.

(b) Photographs of any cultivation activities that currently exist on the legal parcel, including: (i) ground level views of the cultivation activities and (ii) aerial views from Google Earth, Bing Maps, Terraserver, or a comparable service showing: both the entire legal parcel and the cultivation site in more detail. The date these images were captured shall be noted.

(c) At least one additional document demonstrating cultivation on the legal parcel prior to January 1, 2016, which evidence may be used to substitute for evidence pursuant to clause (a). The Agricultural Commissioner shall prepare a list of the types of documentation that will be accepted to meet this requirement, and may accept other similarly reliable documentary evidence showing that cannabis was cultivated for medical use prior to January 1, 2016.

(d) Proof of prior cultivation shall be assigned to the applicant relative to their prior cultivation site.

(e) Persons who participated in a permit program pursuant to the County's Chapter 9.31 in previous years may present evidence of such participation and payment of all required fees in order to provide proof of prior cultivation.

(2) Zoning Districts; Exceptions....

...

(3) Relocation. Persons able to show proof of prior cultivation pursuant to paragraph (B)(1) above may apply for a Permit not on the site previously cultivated (the "origin site") but on a different legal parcel (the "destination site"), subject to the following requirements:

(a) Persons may apply to relocate their cultivation site pursuant to this paragraph (B)(3) until three (3) years after the effective date of the ordinance adopting this Chapter.

(b) The location and operation of the proposed cultivation site on the destination parcel complies with all requirements and development standards that apply to a new cultivation site as of January 1, 2020, pursuant to this Chapter and Chapter 20.242; provided, however:

(i) An existing cultivation site shall not be transferred to a legal parcel located within the Forestland or Timber Production Zone zoning districts.

(ii) An origin site may relocate to a destination site in the Rangeland zoning district, so long as the destination site has an existing cultivation site and no new cultivation sites would be established.

(c) The origin site shall be restored. The application for a Permit on a destination site shall be accompanied by a restoration plan that is consistent with the standard conditions and best management practices listed in the North Coast Regional Water Quality Control Board Order No. 2015-0023, and which shall include the following:

(i) Remove or repurpose buildings, greenhouses, fences, irrigation equipment, water intakes, pumps, storage tanks and other materials brought to the origin site for the purpose of cannabis cultivation;

(ii) Remove illegal dams, ponds, or other in-stream water storage to restore material stream flows, unless such features will continue in use;

(iii) Remove or compost agricultural wastes;

(iv) Remove trash or other debris;

(v) Revegetate cleared areas with native plans typical of nearby natural areas, including groundcover, shrubs and trees.

(d) Unless the destination site is within the Agricultural zoning district, the application shall include either a water availability analysis pursuant to paragraph (C)(1)(b) below or a will serve letter pursuant to paragraph (C)(1)(c) below.

(e) Prior to the issuance of the Permit to cultivate cannabis for medical use at the destination parcel, the applicant shall provide the Agricultural Commissioner with an agreement, on a form approved by the Agricultural Commissioner and County Counsel, providing that the applicant releases any right to continue or resume cultivation or medical cannabis on the origin parcel.

(f) If a person is granted a Permit for a destination site, any claims or proof of prior cultivation on the origin site shall be effectively transferred to the destination site, and the ability to claim proof of prior cultivation at the origin site shall be extinguished.

(g) There shall be a two (2) acre minimum parcel size for all Type C, Type C-A or Type C-B Permits.

(4) Multiple Permits ....

...

Def's Request for Judicial Notice, Ex. A (Dkt. No. 99-1).

Phase One was designed to bring existing growers into the legal market before permitting new entrants into the market. See id. ; see also Def's Request for Judicial Notice, Ex. C at 74 (Draft CEQA Initial Study stating "Phase 1 consists of the review and permitting of eligible operations in existence as of January 1, 2016 and extends from adoption of the ordinance to January 1, 2018.") (Dkt. No. 99-1); id. at 91-92 (stating that permits issued for Phase One "may require physical changes to the existing operations to come into compliance with [various] regulations" and that such changes may include "Relocation to another parcel.").

During the relevant time period, Chapter 10.A.17.080 applied "throughout unincorporated areas of Mendocino County ..., exclusive of areas within the Coastal Zone." Id. at 75; see also Def's Request for Judicial Notice, Ex. F (County of Mendocino Medical Cannabis Cultivation – Regulation Application Checklist, stating "Applications are only being accepted for cultivation sites within zoning districts of...